Thursday, March 23, 2006
While advocates of private property rights howled in response to the Supreme Court’s 2005 eminent domain decision in Kelo v. City of New London, many supporters of government were left mumbling lamely about “deference” in trying to defend the decision. It seemed difficult to justify “the government’s right to take your house and give it to Wal-Mart,” as some news reports in effect in summarized the state of the law.
A new pamphlet of essays published by the Vermont Law School’s Land Use Institute comes to the rescue of some of the leading arguments in favor of giving government a broad power to use eminent domain. Particularly provocative is the essay of Vermont’s Marc B. Mihaly, who asserts that both the majority and minority in Kelo failed to understand the new and beneficial conception of the public-private relationship in economic redevelopment of cities.
Tuesday, March 21, 2006
One of the most remarkable public responses to law in recent years has been the outcry over the Supreme Court's upholding the broad right of government to take private property through eminent domain when the land is destined for private hands. The decision in Kelo v. New London, Conn., has spurred initiatives in nearly every state, a well as in Congress, to limit eminent domain. I find it intriguing that so many citizens appear to find it objectionable that government can take their house for an urban redevelopment plan, when governments have always routinely taken houses for public land, such as for city halls and roads. Does the fact that land is going to end up in private hands make so much of a difference? Do citizens see in eminent domain destined for private hands a much greater potential for abuse than condemnation for roads, etc?
The "liberal" criticism of eminent domain - that property of poorer and less politically powerful groups in society tend to be the targets of eminent domain - failed to make any apparent dent in the thinking of the Supreme Court in Kelo. I suggest, however, that arguments of unfair effect on insular groups might eventually form the best defense against eminent domain destined for private hands - at least in the halls of government, if not in the courts. The experience of the "environmental justice" movement - which asserts that environmental hazards have been disproportionately and unfairly sited near racial minority neighborhoods - may have had its greatest success simply in mobilizing communities that previously would not have stood up for their interests.
An example of the phenomenon in the world of eminent domain may be playing out in Washington, D.C., where the city is evicting a number of small businesses on land destined for the new city-financed baseball stadium. A number of the businesses are gay-oriented shops. Whenever an insular minority suffers disproportionately from a burden of government, law (both lawmakers and courts) should look very closely at why this adverse impact had to happen.
Monday, March 20, 2006
Ten years ago, social critic James Howard Kunstler published "Home From Nowhere." Perhaps more than any other work, "Home" (which followed Kunstler's "The Geography of Nowhere") provided a readable source of criticism of the American suburban model and offered proposals for revamping our land use laws. In plain language, Kunstler decried the everyday world in the United States an "abysmal mess." The solution, he argued, was a reversal our laws that separated land uses, required low density, and depended on the automobile. Instead, he proposed changes to encourage "mixed-use neighborhoods" in which people could walk, ride their bike, or take public transportation to nearby friends, stores, and jobs. He pointed to the ideas of the "New Urbanist" architects and planners. He also bucked trends by, for example, criticizing the environmentalist shibboleth of "green space" for its own sake in the metropolitan world.
The construction of our sprawling suburban world has been a "self-destructive act," Kunstler maintained. We should replace it with the models of dense cities, as in Europe, and of the old small town Main Street, which "people loved deeply," he wrote.
In a series of entries in this blog, I will from time to time examine how American law and culture has responded over the past ten years to Home and its ideas. On one hand, the benefits of density and mixed use have become an accepted part of the urban dialogue. On the other hand, sprawl has continued unabated. While some Americans have returned to the city, many others have embraced the ideal of suburban life as never before, with huge SUVs (with their own DVD players) and enormous homes inside of gates and regulated by restrictive deeds and covenants.
What have Kunstler and his cohorts taught us? How have they been right? How have they been wrong? Please watch this space.
Sunday, March 19, 2006
The new urbanists argue that Americans are rediscovering the joys of urban life. This may be true for some groups, but not for all. The Washington Post reports that the percentage of residents who are children is continuing to fall in many American cities. In San Francisco, the under-18 population fell to 14.5% in 2000, down from 17.2% in 1980 and 24.5% in 1960. Focusing on the story of a single mother who has moved to Sacramento but still commutes to the city by the bay each day, the Post's John Pomfret blames the skyrocketing cost of housing. "[M]iddle-class families [are] fleeing" coastal cities for less expensive communities, he writes.
But San Francisco is not losing population; it is gaining population. Developers there have been spurred by the house-price boom to try to squeeze in more units wherever they can. So why is the percentage of children falling? The truth, rarely spoken, is that more affluent families (and affluent singles, of course) are likely to have fewer children than middle-class and poorer families have. As a city gets richer, it also is likely to lose children. Although it may be true that Americans are more attracted by city life today than they were in, say, 1970, it is much more likely to be people with few or no children who are following the attraction.
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- Katherine Dentzman on A Coordinated Approach to Food Safety and Land Use Law at the Urban Fringe
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- Jamie Baker Roskie on Local Regulation of Hydraulic Fracturing
- Samuel on Schleicher and Rauch on local regulation of the sharing economy
- Timothy Wayne George on Is Reed v. Town of Gilbert an important sign case?
- Water Down Under: A Report from Australia by Barb Cosens: Post 2: Comparative Water Law: Australia and the western United States or Conversations with Claire
- APA Planning & Law Division's Smith-Babcock-Williams Student Writing Competition now accepting entries
- Jan 30 - Boston U Law - The Iron Triangle of Food Policy - AJLM Symposium
- "Basic Human Right" to Farm Your Lawn?
- CFP: Fordham Law: Sharing Economy, Sharing City: Urban Law and the New Economy